Empire Strikes First: Keeping Our Eyes on Doe

Last month, this column attempted to offer a simplified who’s who in the unfolding John Doe investigation of campaign finance violations surrounding the 2012 recall elections. If you have not read that column, I suggest tracking down a copy and perhaps even cutting it out for future reference. The story is far from over, and with our local mainstream newspapers giving it little coverage, I feel obligated to use this forum to keep the awareness up as long as new details emerge.

As we know, following the Supreme Court case Citizens United v. Federal Election Commission in 2010, the doors were opened for all kinds of campaign contributions. What used to be called bribery is now legally free speech. Senator John McCain calls it “incredibly naive” and the “worst joke in Washington”. But that is on the federal level. Wisconsin has its own rules, perhaps a bit more restrictive.

Wisconsin’s campaign finance statutes specifically open with the following line: “When the true source of support or extent of support is not fully disclosed, or when a candidate becomes overly dependent upon large private contributors, the democratic process is subjected to a potential corrupting influence.” And this (among other things) is what is being looked at now — are donors obscuring the “true source” of their money?

Although the targets of the Doe probe are secret and are forbidden from discussing the investigations, we do know at least one target: the Wisconsin Club for Growth (as predicted in last month’s column). How do we know this? Because Eric O’Keefe, WCG’s director, violated his gag order to leak information to the Wall Street Journal.

The subpoena that O’Keefe received demanded “all memoranda, email… correspondence, and communications” within WCG and also between himself and twenty-nine other conservative groups. The subpoena further demands “all records of income received, including fundraising information and the identity of persons contributing to the corporation.” O’Keefe, of course, is appalled that his donors would be made known, but again we only have to look back to the statutes — sources of income should be “fully disclosed”, lest we have a “potential corrupting influence”.

O’Keefe is an important figure in the conservative movement, not just in the state but beyond. He served as national director of the Libertarian Party in 1980 and was a director of the Cato Institute, an influential think tank founded by Charles Koch. O’Keefe says whether or not he broke the law, the subpoenas “froze my communications and frightened many allies and vendors… in Wisconsin and across the country.” He claims merely being investigated has put a stigma on him and the organization.

But this is blaming the media and the law. Surely a murderer’s stigma grows after being reported on in the press. WCG have not killed anyone, though they have done their part to put the nails in democracy’s coffin. In 2011, they brought in millions from out-of-state “secret donors” and shuffled it to other nonprofits that in turn spent millions on the 2011 and 2012 elections. How did they get away with this maze of hidden donors under Wisconsin’s laws?

There is a loophole: because WCG claimed that the approximately $9.7 million it spent on the 2011 and 2012 recall elections were about “issues” rather than elections, it did not report a single dollar in spending to the state elections board, nor did it report the sources of its funding. If you say in your ad that, for example, Tom Barrett opposes hunters’ rights, but never specifically say “vote for Scott Walker”, you are discussing an issue and not endorsing a candidate. Sometimes the line is more than a little blurred.

Governor Walker has encouraged these loopholes, saying in February 2011 how his fellow Republicans “don’t necessarily need ads for them, but they’re gonna need a message out reinforcing why” removing collective bargaining “was a good thing to do for the economy and a good thing to do for the state.” If an ad supports a certain law but does not explicitly endorse the politicians who passed it, the funding can be unlimited and anonymous.

Last month, R. J. Johnson was mentioned as a likely target in this column. Today this seems even more so, as Johnson’s connections are better known. Prior to April 2009, Johnson was the spokesman for WCG. From 2009 through January 2012, Johnson was paid $130,000 to act as an adviser for Walker’s campaigns. While still on Walker’s payroll, he appeared publicly as a spokesman for WCG in February, July, August and September 2011. Blurred lines?

The connection is actually made even stronger by Walker’s new autobiography. In the acknowledgements, he freely says they “have worked together for more than two decades.” The book mentions how Johnson was Walker’s “chief political strategist” in February 2011. As late as June 2012, Johnson is mentioned as being in the governor’s “war room”. While it is no shock and hardly a crime for a conservative politician to be friends with a conservative activist, this constant overlap demands the question: can one man craft strategy for a politician and an interest group at the same time without combining the two?

Perhaps we shall never know, as the targets have decided a strong offense is the best defense.

Rather than rely on their methods to be completely legal and wait for the John Doe to blow over, certain targets of the probe have filed a lawsuit to block further investigation. As of now their efforts have been unsuccessful. The three-judge Wisconsin Court of Appeals ruled, “Proceedings may continue in any or all of these matters unless and until this court orders otherwise.” Conservatives may see political bias here, as the appellate court (including Judge Joanne Kloppenburg) is generally left-leaning.

And even those searching may appear to be biased. In an interview with the Wisconsin Reporter, state senator Glenn Grothman (R-West Bend) said, “It seems as though the people out front in the investigation have strong Democratic connections. It leads one to question whether this is a fishing expedition designed to embarrass Republicans rather than an investigation built on factual evidence.”

Is the target biased and political in nature? No one can say for sure. The only reason we know conservatives were targeted is because Eric O’Keefe came forward. Possibly his liberal counterpart (whomever that might be) is also being investigated, but has remained quiet. Or perhaps conservatives are a target because they broke the law — even if the probe is biased (which seems unlikely with a Republican prosecutor), if a law is broken, a penalty must be enforced.

And still this is not the end. Aside from the ongoing probe, the lawsuit it self might take an interesting turn. All four members of the Wisconsin Supreme Court’s conservative majority have had help getting elected from two known targets, WCG and Wisconsin Manufacturers and Commerce. If the case gets to them, will it be decided fairly? Stay tuned.